Ocampo’s Gauntlet to the UN Security Council

Tragedy is the conflict of rights and there is no greater and more painful tragedy than the clash of fundamental rights. This drama is about to be played out between the members of the UN Security Council and the International Criminal Court.

The ICC was established under the Rome Statute of 2002. The case of Darfur was referred by the UNSC in April 2005 under Resolution 1593. It is a powerful weapon in the international arsenal for responding to grave violations. And it is independent. Once armed, it is a self-aiming weapon. That is how it should be.

Three years ago, the Chief Prosecutor of the ICC, Prof. Luis Moreno Ocampo, took aim at Darfur. There is no need to recount the challenges he faced. The Sudan Government has been worse than uncooperative, it has been deliberately provocative. As an act of bravado, a calculated insult to the ICC and the international community, the indicted minister Ahmed Haroun was transferred to be Minister of State for Humanitarian Affairs and put in charge of various UN and human rights files. Ocampo threw down the gauntlet. Bashir picked it up.

Khartoum is now viciously attacking the ICC, pre-emptively accusing the Prosecutor of responsibility for a future war in the country. On moral and legal principle, the Sudan Government is utterly wrong on this. If there’s a new war, it will be the fault of whoever starts it on the ground in Sudan, not the ICC””irrespective of how ICC actions may have changed the political calculations of the belligerents.

But that’s not where the moral and policy challenges lie. Ocampo has also thrown down the gauntlet to the UN Security Council and especially the U.S., Britain and France. Unlike the Sudan Government, they have not yet picked up the gauntlet””or even recognized the dilemma coming their way. But when they do so, they will face the question, what policy objectives are they ready to compromise or sacrifice to the pursuit of justice?

What happens””and what should happen””when efforts to prosecute perpetrators of mass atrocities coincide with a peace process?… One common and convenient response is to hide behind truisms and make general statements of principle to the effect that no trade-off is required because peace and justice are inextricably linked. Clearly peace and justice are complementary in that justice can deter abuses and can help make peace sustainable by addressing grievances non-violently. But good things don’t always go together, and to present peace and justice as invariably mutually reinforcing is misleading and unhelpful when the difficult reality of peacemaking often proves otherwise.

Those who advocate that peace and justice go together argue that it’s necessary to end impunity in order to deter future crimes. No well-meaning person could disagree with that principle. But despots are learning a different lesson: that it’s necessary to hang onto power at all costs, because the alternative won’t be a comfortable exile in oblivion but instead a prison cell. In 1991, Ethiopian dictator Mengistu Haile Mariam was offered the chance to flee to Zimbabwe. He took it and Addis Ababa was spared a bloody showdown. Robert Mugabe today has nowhere safe to flee except North Korea.

Another case is Idriss Deby of Chad. With the rebels at the gates of the presidential palace in N’djamena in February this year, the French offered him a plane to escape. He reportedly replied that he would rather die fighting and didn’t want a neighbourhood of the Chadian capital to be named after him, “Idriss Deby has fled.” The reference is to a quarter called “Hisséne Habré has fled.” Habré fled rather than die and now sits in a Senegalese jail facing more than one hundred counts of murder.

In the case of Sudan, it’s not only peace at issue. There’s also the deployment of UNAMID and UNMIS, the prospects of democratization, and ongoing humanitarian programmes.

If the Government of Sudan is a criminal enterprise, indicted by the prosecutor of the highest international court, can the UN sustain its agreements and maintain its cooperation? Can governments which support the ICC dispatch ambassadors and maintain official aid programmes?

There are two mechanisms which can be used to make the ICC’s activities compatible with other objectives. One is internal. Prosecutions should be in the interests of justice and the victims. That judgement call falls upon the Prosecutor. Unlike a district prosecutor, he picks and chooses his cases. This makes his activities intrinsically political. Where many crimes have been committed””such as Darfur or the Democratic Republic of Congo””who is to be investigated? How to balance between the low-level perpetrators and the commanders? How to balance between the different sides of a conflict? How to choose between the different kinds of crime committed””murder, rape, torture, recruitment of child soldiers? Given the limited resources of the ICC these are almost impossible choices. And indeed, why should it be the task of a Prosecutor to make such delicate political judgements?

The second mechanism is external. Under Article 16 of the Rome Statute, the UN Security Council can defer an ICC investigation of prosecution for twelve months. It cannot block it entirely or suspend it indefinitely””merely defer for a (renewable) year. There is no sign that the UNSC is contemplating using this power. In the discussions following Ocampo’s six monthly report to the UNSC last week, not one ambassador drew attention to a potential clash between the worthy goals of peace and justice. It is unthinkable for Britain or France to propose a resolution to defer ICC prosecutions on Sudan. China is playing safe in advance of the Olympics. The U.S.””which opposes the ICC on principle””is in the weakest position to propose anything. If Ocampo’s strategy is to put the U.S. in a position in which it is compelled to support the ICC, he has chosen his moment well.

Ocampo is forcing the hand of the UN Security Council. When he issues his indictment next month against a man who instrumented Haroun, he will compel the international community to confront its toughest decision on where its priority lies. Which will prevail: the pursuit of justice no matter what, or the negotiations to secure peace and democracy? Or can a way be found to reconcile these objectives?

3 comments

Dialectically, pursuing justice while achieving peace has been a dilemma reinforced by the foundation and will to act of the International Criminal Court (ICC) which was founded without the support of the US, one among many other signs of its eroding power and the return to a multi-polar system of power. Of course the Europe Union is lagging far behind in reacting to the reorganization of the chess-board and its fading influence in Africa to the benefit of China (mainly).

Although I am not familiar with the personality of Mr. Bashir, his game of mouse and cat seems too familiar to not attempt the use of other means to end this nasty game. The indictment of officials from Khartoum other than minor players would also be a sign for rebel or opposition groups that they cannot act without impunity since with time they will continue to move from grievance to greed, making any prognostic for a potential cease-fire elusive.

This attempt could come at an opportunistic period since the fall in the world food stocks has already had an impact on humanitarian assistance with the United Nations cancelling some flights. Tragically, the potential decline in humanitarian assistance (as you said earlier, the only alleviation brought to the suffering population) will have a deadly toll on civilians but it will also slow down the political economy of both the government and rebel/opposition groups and this possible window of opportunity must be seized.

People say that death and taxes are the only two things we can rely on. Alex De Waal has added a third certainty to life: the ability for the NCP to do whatever it likes without consequence.

De Waal views Sudanese citizens, humanitarians, and peacekeepers at the mercy of the Sudanese governmentâ€™s despots. With this in mind, he politely prodded the UNSC to consider putting ICC justice on hold.

De Waalâ€™s advice should give us pause. It is right, as he advices, for the UNSC to bend to the fear-mongering of the Sudanese government? If it does, wonâ€™t the UNSC be encouraging Sudan â€™s dismal behaviour? Iâ€™ve lost a lot of faith in the situation in Darfur, but Iâ€™m not yet willing to ask the UNSC to adapt to Sudan â€™s horrific behaviour.

De Waal co-authored a letter with Julie Flint where he said, â€œAt this sensitive time, to lay charges against senior government officials and to criminalise the entire government, will derail attempts to pull Sudan back from the brink and could provoke retaliation against humanitarian bodies and the two UN peacekeeping missions in the countryâ€.

Now heâ€™s focused on the UNSC. Fearing â€œthe priorities of accountability for human rights violations and peace will contradict one anotherâ€, De Waal wrote, â€œOcampo is forcing the hand of the UN Security Council. When he issues his indictment next month against a man who instrumented Haroun, he will compel the international community to confront its toughest decision on where its priority lies. Which will prevail: the pursuit of justice no matter what, or the negotiations to secure peace and democracy? Or can a way be found to reconcile these objectives?â€

If we cut through the kindness, de Waal is saying that the ICC only has a damaging role to play in Darfur . But why? Is he justified? He says despots wonâ€™t give up; peacekeeping and humanitarian operations will be jeopardized (Pierrette Quintilianiâ€™s contribution to the blog drew attention to the aggravating factor of the worldâ€™s low food stocks); and peace will be jeopardized (not just in Darfur but also maybe between the North and South).

De Waalâ€™s knowledge of the country and conflict make his warnings more than logical predictions or guesswork. The Sudanese government doesnâ€™t pause to harm their people just to slap the international community across the face. I have my doubts to his concerns however.

De Waal treats his worries as unshakable truths. I ask again, it is right for the UNSC to bend to the fear-mongering of the Sudanese government? If it does, wonâ€™t the UNSC be encouraging Sudan â€™s dismal behaviour? Are we willing to ask the UNSC to adapt to Sudan â€™s horrific behaviour? Letâ€™s not go down the road where we blame the ICC or UNSC for criminal retaliations the Sudan â€™s government makes against peacekeepers and humanitarians.

De Waal and his supporters may label my thinking as principled, and not pragmatic. If the international communityâ€™s cycle of appeasement and softness could be broken the tangible results will far exceed the expectations of what peace talks could bring. Letâ€™s not cower behind what the international community has not done, but letâ€™s push them to do more. But if the UNSC ceases support for the ICC, it only reinforces what Sudan â€™s leaders already know: that they can do as they wish without consequence.

De Waalâ€™s concerns about the new ICC application are misguided for other reasons. A lot of time, money, and emotion have been put into Drfrur peace talks. Such talks are a chance to end the suffering of millions of people and bring Darfur into the New Sudan created by the CPA. Now with a new AU-UN mediator on the way, thereâ€™s fresh opportunity. But will this be the same as other â€œopportunitiesâ€?

Retrospect is a gift we donâ€™t have the privileged of benefiting from. But when history is repeated we can become better at predicted the future. The history of peace negotiations donâ€™t bode well for Darfur . Without success the international community has put faith in its peace brokering skills. Itâ€™s looked the fool. The rebels have their fair share of fuelling the conflict; and the various peace negotiators have been criticized for various reasons. But letâ€™s remember that the Sudanese government has a history of using peace talks as delay tactics, not as honest opportunities for peace. They have done this in Darfur, with southerners, and with Chad .

With this history in mind, the Sudan â€™s ambassador to the UN tossed the â€œdonâ€™t disrupt peaceâ€ red herring into the air after the Prosecutor of the ICC presented his report to the UNSC on June 5. Now De Waal is waving it in the nose of the UNSC. Logical as this concern may be, there is a depressing reality: currently there is no prospect for peace in Darfur to save. For domestic and geo-political reasons, the Sudanese government wants Darfur to stay a violent land, not a peaceful one. Peace negotiations, pre-peace negotiations, and plans for planning peace negotiations have been underway in Darfur since the conflict began. What peace process will the ICC damage?

The recent fighting in Abyei between northern soldiers and the SPLA raises the stakes. Perhaps there is no peace to save in Darfur , but their certainly is peace to save between the north and south.

When the armies fought in May 2008 and over 100,000 people were displaced, warnings that the northerners and southerners were going to return to war spread through the media, NGOs, and diplomats. There have been other serious problems between the SPLM And NCP as well. But in each case the problems are resolved. In some cases international pressure was applied. But the real reason that war has not returned between the north and south is that the SPLM, but also the NCP, has too much to lose if the CPA collapses. This balance may be tipped if the NCP doesnâ€™t allow for election or the 2011 referendum. But a new ICC indictment will not throw Sudan back into a north-south war.

In Darfur the international community has gambled on Sudan â€™s willingness to want peace too much. Itâ€™s bent to Sudan â€™s fear-mongering too often. Itâ€™s been conned into thinking whatever it does will lead to war. Itâ€™s time to expose the smoke and mirrors, move in a new direction, and give full-fledged support to the ICC.

The ICC has no credibility, not only vis a vis Darfur; but because it is selective in its pursuit of justice. It is one of the instruments of the Powerful and is only directed towards countries that are seen as vulnerable and easy to bully or coerce Had its mandate included the ability to target Security Council members (for example) its status would have been different.

Moreover, there is another dimension which is conveniently overlooked by many.Interest in Darfur and Sudan is not purely and innocently humanitarian.There are interests which are part of the new scramble for Africa.They are not far removed from the factors which led to the invasion of Iraq.The original Neo Con list included Iran, Syria and Sudan.

As for Ocampo ; he reminds me of a Sudanese proverb which describes a man who spears the shadow of the nearby elephant. He dare not touch a hair in the elephant’s tail but demonstrates his “gauntlet” by targeting the safe shadow.The elephants of human rights violations are visible for those who are really interested in human rights!

His open confession of involvement in a conspiracy to hijack an aeroplane shows that he is a real loose cannon militating against cooperation between Sudan and the International Community.Such behaviour can only embolden the rebels(never called terrorists) in their irresponsible strategy of prolonging the conflict and the suffering in Darfur. Sudan needs a credible partner for peace . It has shown its serious pursuit of peace in Abuja in 06 and on other occasions. The urgent task now is to revitalise the peace process,not to sabotage it the way Mr Ocampo does. Those holding his leach should give it a pull the way my old English neighbours do during their morning constitutional.
Law does not exist outside society’s fabric or irrespective of a world context .To claim that a dysfunctional and lopsided world order can provide overall even-handed fairness is a delusion, Ocampo is the best proof of that.

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